TENDER AND SUPPORT AGREEMENT
TENDER
AND SUPPORT AGREEMENT (this “Agreement”)
dated
as of May 14, 2007, among Linear LLC, a California limited liability company
(“Purchaser”),
and
the parties listed on Annex I
hereto
(each, a “Securityholder”).
WHEREAS,
as of the date hereof, each Securityholder is the holder of the number of Shares
set forth opposite such Securityholder’s name (all such directly owned Shares
that are outstanding as of the date hereof, together with any Shares that are
hereafter issued to or otherwise acquired or owned by any Securityholder prior
to the termination of this Agreement (including pursuant to any exercise of
Company Options or exercise or conversion of other securities, or stock
dividend, distribution, split-up, recapitalization, combination or similar
transaction) being hereinafter referred to as the “Subject
Shares”);
WHEREAS,
as a condition to their willingness to enter into the Agreement and Plan of
Merger, dated as of the date hereof (the “Merger
Agreement”),
among
Purchaser, Acquisition Sub 2007-2, Inc., a Massachusetts corporation and
wholly-owned subsidiary of Purchaser (“Merger
Sub”),
and
Nortek, Inc., a Delaware corporation, and Target, Inc., a Massachusetts
corporation (the “Company”),
Purchaser has required that each Securityholder, and in order to induce
Purchaser to enter into the Merger Agreement each Securityholder (in such
Securityholder’s capacity as a holder of the Subject Shares) has agreed to,
enter into this Agreement; and
WHEREAS,
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Merger Agreement;
NOW,
THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth below, the parties hereto agree
as follows:
ARTICLE
1.
AGREEMENT
TO TENDER
1.01 Agreement
to Tender.
Each
Securityholder shall validly tender or cause to be tendered in the Offer all
of
such Securityholder’s Subject Shares pursuant to and in accordance with the
terms of the Offer. Prior to the expiration of the Offer, each Securityholder
shall (i)
deliver
to the depositary designated in the Offer (the “Depositary”)
(A)
a
letter of transmittal with respect to his or her Subject Shares complying with
the terms of the Offer, (B)
a
certificate or certificates representing such Subject Shares or an “agent’s
message” (or such other evidence, if any, of transfer as the Depositary may
reasonably request) in the case of a book-entry transfer of any uncertificated
Subject Shares and (C)
all
other documents or instruments required to be delivered by other stockholders
of
the Company pursuant to the terms of the Offer, and/or (ii)
instruct his or her broker or such other Person that is the holder of record
of
any Subject Shares beneficially owned by such Securityholder to tender such
Subject Shares pursuant to and in accordance with the terms of the Offer. Each
Securityholder agrees that once his or her Subject Shares are tendered into
the
Offer, he or she will not withdraw any of such Subject Shares from the Offer,
unless and until (i)
the
Offer shall have been terminated in accordance with the terms of the Merger
Agreement or (ii)
this
Agreement shall have been terminated in accordance with Section 5.03
hereof.
ARTICLE
2.
REPRESENTATIONS
AND WARRANTIES OF THE SECURITYHOLDERS
Each
Securityholder represents and warrants to Purchaser as to himself or herself,
severally and not jointly, that:
2.01. Authorization;
Binding Agreement.
The
execution, delivery and performance by such Securityholder of this Agreement
and
the consummation of the transactions contemplated hereby are within his or
her
legal capacity and requisite powers. This Agreement constitutes a legal, valid
and binding agreement of such Securityholder enforceable against such
Securityholder in accordance with its terms, subject to the Enforceability
Exceptions.
2.02. Non-Contravention.
The
execution, delivery and performance by such Securityholder of this Agreement
and
the consummation of the transactions contemplated hereby do not and will not
(a)
violate
any Law applicable to such Securityholder, (b)
require
any Consent or other action by any person under, constitute a default under,
or
give rise to any right of termination, cancellation or acceleration or to a
loss
of any benefit to which such Securityholder is entitled under any provision
of
any agreement or other instrument binding on such Securityholder or
(c)
result
in the imposition of any Encumbrance on any asset of such Securityholder, in
each case such as would impair or adversely affect such Securityholder’s ability
to perform his or her obligations hereunder. No Consent from or with any
Governmental Authority is required in connection with the execution and delivery
of this Agreement by such Securityholder or the consummation by such
Securityholder of the transactions contemplated hereby, except for applicable
requirements, if any, under the Exchange Act and any other applicable state
or
federal securities laws and for such Consents the absence of which would not
impair or adversely affect such Securityholder’s ability to perform his or her
obligations hereunder.
2.03. Ownership
of
Subject Shares; Total Shares.
Such
Securityholder is the record or beneficial owner (as defined in Rule 13d-3
under
the Exchange Act) of his or her Subject Shares and, as of the date of Merger
Sub’s acceptance of the Shares in the Offer, such Subject Shares will be free
and clear of any Encumbrance and any other limitation or restriction (including
any restriction on the right to vote or otherwise transfer such Subject Shares),
except as provided hereunder or pursuant to any applicable restrictions on
transfer under the Securities Act. As of the date hereof, such Securityholder
does not own, beneficially or otherwise, any Shares, Company Options or other
securities of the Company other than (x)
as set
forth opposite such Securityholder’s name in Annex
I
hereto
and (y)
the
Company Options set forth opposite such Securityholder’s name on Section 2.2(f)
of the Company Disclosure Schedule.
2.04. Voting
Power.
Such
Securityholder has full voting power, with respect to his or her Subject Shares,
and full power of disposition, full power to issue instructions with respect
to
the matters set forth herein, and full power to agree to all of the matters
set
forth in this Agreement, in each case with respect to all of his or her Subject
Shares. None of such Securityholder’s Subject Shares are subject to any voting
trust or other agreement or arrangement with respect to the voting of such
shares, except as provided hereunder.
2.05. Reliance
By Purchaser.
Such
Securityholder understands and acknowledges that Purchaser is entering into
the
Merger Agreement in reliance upon such Securityholder’s execution and delivery
of this Agreement.
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to the Securityholders that:
3.01. Authorization;
Binding Agreement.
Purchaser
is a limited liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and the execution,
delivery and performance by Purchaser of this Agreement and the consummation
by
it of the transactions contemplated hereby are within its corporate or other
organizational powers and have been duly authorized by all necessary corporate
or other organizational actions on the part of Purchaser. This Agreement
constitutes a legal, valid and binding agreement of Purchaser, enforceable
against Purchaser in accordance with its terms, subject to the Enforceability
Exceptions.
3.02. Non-Contravention.
The
execution, delivery and performance by Purchaser of this Agreement and the
consummation by it of the transactions contemplated hereby do not and will
not
(a)
violate
any Law applicable to Purchaser, (b)
require
any Consent or other action by any person under, constitute a default under,
or
give rise to any right of termination, cancellation or acceleration or to a
loss
of any benefit to which Purchaser is entitled under any provision of any
agreement or other instrument binding on Purchaser or (c)
result
in the imposition of any Encumbrance on any asset of Purchaser, in each case
such as would impair or adversely affect Purchaser’s ability to perform its
obligations hereunder. No Consent from or with any Governmental Authority is
required in connection with the execution and delivery of this Agreement by
Purchaser or the consummation by it of the transactions contemplated hereby,
except for applicable requirements, if any, under the Exchange Act and any
other
applicable state or federal securities laws and for such Consents the absence
of
which would not impair or adversely affect Purchaser’s ability to perform its
obligations hereunder.
ARTICLE
4.
ADDITIONAL
COVENANTS OF THE SECURITYHOLDERS
Subject
to Section 5.15 hereof, each Securityholder hereby covenants and agrees as
to
himself or herself, severally and not jointly, that:
4.01. Voting
of
Subject Shares.
At
every
meeting of the stockholders of the Company called, and at every adjournment
or
postponement thereof, such Securityholder shall, or shall cause the holder
of
record on any applicable record date to, vote his or her Subject Shares (to
the
extent that any of such Securityholder’s Subject Shares are not purchased in the
Offer) (a)
in
favor of the adoption of the Merger Agreement and the transactions contemplated
thereby, (b)
against
(i)
any
agreement or Company action regarding any Company Takeover Proposal,
(ii)
any
liquidation, dissolution, recapitalization, extraordinary dividend or other
significant corporate reorganization of the Company or any of its subsidiaries
(iii)
any
agreement or Company action that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or (iv)
any
agreement or Company action that would reasonably be expected to prevent,
impede, interfere with or delay the transactions contemplated by the Merger
Agreement or that would reasonably be expected to dilute the benefits to
Purchaser and its affiliates of the transactions contemplated by the Merger
Agreement and (c)
in
favor of any other matter necessary for consummation of the transactions
contemplated by the Merger Agreement, which is considered at any such meeting
of
stockholders.
4.02. Irrevocable
Proxy.
In
order
to secure the performance of such Securityholder’s obligations under this
Agreement, by entering into this Agreement, such Securityholder hereby
irrevocably grants a proxy appointing such persons as Purchaser designates
as
such Securityholder’s attorney-in-fact and proxy, with full power of
substitution, for and in his or her name, place and xxxxx, to vote, express
consent or dissent, or otherwise to utilize such voting power in the manner
contemplated by Section 4.01 as such attorney-in-fact and proxy, in his or
her
sole discretion, deems proper with respect to such Securityholder’s Subject
Shares until the termination of this Agreement in accordance with Section 5.03
hereof. Such Securityholder hereby revokes any and all previous proxies granted
with respect to his or her Subject Shares. Each Securityholder severally (and
not jointly) hereby affirms that the irrevocable proxy set forth in this Section
4.02 is given in connection with the execution of the Merger Agreement and
granted in consideration of Purchaser entering into this Agreement and Purchaser
and Merger Sub entering into the Merger Agreement and affirms that the
irrevocable proxy is coupled with an interest and may under no circumstances
be
revoked, except that this irrevocable proxy shall be revoked automatically,
without any notice or other action by any person, upon the termination of this
Agreement in accordance with Section 5.03 hereof. Each Securityholder severally
(and not jointly) hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. This
proxy and power of attorney is irrevocable and coupled with an interest and
is
executed and intended to be irrevocable.
Each
Securityholder shall execute and deliver to Purchaser any proxy cards that
such
Securityholder receives to vote in favor of the adoption of the Merger Agreement
and the transactions contemplated thereby.
4.03. No
Transfers; No Inconsistent Arrangements.
(a) Except
as
provided hereunder or under the Merger Agreement, such Securityholder shall
not,
directly or indirectly, (i)
transfer (which term shall include any sale, assignment, gift, pledge,
hypothecation or other disposition), or consent to or permit any such transfer
of, any or all of his or her Subject Shares, or any interest therein, or create
or permit to exist any Encumbrance on any such Subject Shares, (ii)
enter
into any contract, agreement, arrangement or understanding with respect to
any
transfer of such Subject Shares or any interest therein, (iii)
grant
or permit the grant of any proxy, power of attorney or other authorization
in or
with respect to such Subject Shares, (iv)
deposit
or permit the deposit of such Subject Shares into a voting trust or enter into
a
voting agreement or arrangement with respect to such Subject Shares or
(v)
take or
permit any other action that would in any way restrict, limit or interfere
with
the performance of his or her obligations hereunder or the transactions
contemplated hereby or otherwise make any representation or warranty of each
Securityholder herein untrue or incorrect.
(b) Any
attempted transfer of Subject Shares, or any interest therein, in violation
of
this Section 4.03 shall be null and void. In furtherance of this Agreement,
such
Securityholder shall and hereby does authorize the Company and Purchaser’s
counsel to notify the Company’s transfer agent that there is a stop transfer
restriction with respect to all of his or her Subject Shares (and that this
Agreement places limits on the voting and transfer of his or her Subject
Shares); provided
that any
such stop transfer restriction shall terminate automatically, without any notice
or other action by any Person, upon the termination of this Agreement in
accordance with Section 5.03 hereof.
4.04. [Intentionally
omitted.]
4.05. No
Solicitation.
Subject
to Section 5.14, such Securityholder hereby agrees to comply with the provisions
of Section 4.8 of the Merger Agreement as if a party thereto. The
Securityholder, in his capacity as an officer and director of the Company,
hereby acknowledges and agrees to the provisions of Section 4.8 of the Merger
Agreement that apply to him in such capacity.
4.06. No
Exercise of
Appraisal Rights.
Such
Securityholder agrees not to exercise any appraisal rights or dissenter’s rights
in respect of his or her Subject Shares which may arise with respect to the
Merger.
4.07. Legends.
If
so
requested by Purchaser, such Securityholder agrees that his or her Subject
Shares shall bear a legend stating that they are subject to this Agreement;
provided
that the
Company shall remove such legend upon the termination of this Agreement in
accordance with Section 5.03 hereof.
4.08. Documentation
and
Information.
Such
Securityholder (i)
consents to and authorizes the publication and disclosure by Purchaser and
its
affiliates of his or her identity and holding of Subject Shares, the nature
of
his or her commitments and obligations under this Agreement (including, for
the
avoidance of doubt, the disclosure of this Agreement) and any other information,
in each case, that Purchaser reasonably determines is required to be disclosed
by applicable Law in any press release, the Offer Documents, or any other
disclosure document in connection with the Offer, the Merger or any of the
other
transactions contemplated by the Merger Agreement or this Agreement and
(ii)
agrees
promptly to give to Purchaser any information it may reasonably require for
the
preparation of any such disclosure documents. Such Securityholder agrees to
promptly notify Purchaser of any required corrections with respect to any
written information supplied by him or her specifically for use in any such
disclosure document, if and to the extent that any shall have become false
or
misleading in any material respect.
ARTICLE
5.
MISCELLANEOUS
5.01. Notices.
All
notices, requests and other communications to any party hereunder shall be
in
writing (including facsimile transmission) and shall be given,
if
to
Purchaser, to:
Acquisition
Sub 2007-2, Inc.
c/o
Nortek, Inc.
00
Xxxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Attention:
General Counsel
Facsimile:
000-000-0000
with
a
copy to:
Ropes
& Xxxx LLP
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxx X. Xxxx
Facsimile:
(000)
000-0000
if
to any
Securityholder, to him or her at that address specified on Annex
I,
with
a
copy to:
Xxxxxx,
Hall & Xxxxxxx LLP
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx, Xx.
Facsimile:
(000) 000-0000
or
to
such other address or facsimile number as such party may hereafter specify
for
the purpose by notice to each other party hereto. All such notices, requests
and
other communications shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 p.m. on a business day in the place
of receipt. Otherwise, any such notice, request or communication shall be deemed
to have been received on the next succeeding business day in the place of
receipt.
5.02. Further
Assurances.
Each
Securityholder shall, from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further transfers, assignments,
endorsements and other instruments as Purchaser may reasonably request to carry
out the transactions contemplated by this Agreement.
5.03. Termination.
This
Agreement shall terminate automatically, without any notice or other action
by
any person, upon the earlier of (a)
the
termination of the Merger Agreement in accordance with its terms and
(b)
the
Effective Time; provided,
however,
that
any such termination, under clause (a)
herein,
shall not effect the provisions of Section 4.04 and this Article 5, which shall
continue in full force and effect thereafter.
5.04. Survival
of
Representations And Warranties.
The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall not survive the Effective
Time.
5.05. Amendments
and
Waivers.
(a) Any
provision of this Agreement may be amended or waived if such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party to
this
Agreement or, in the case of a waiver, by each party against whom the waiver
is
to be effective.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
applicable Law.
5.06. Expenses.
Except
as
otherwise provided herein or in the Merger Agreement, all costs and expenses
incurred in connection with this Agreement shall be paid by the party incurring
such cost or expense.
5.07. Binding
Effect; Benefit; Assignment.
(a) The
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, heirs, personal
representatives, administrators, executors and permitted assigns. No provision
of this Agreement is intended to confer any rights, benefits, remedies,
obligations or liabilities hereunder upon any Person other than the parties
hereto and their successors, heirs, personal representatives, administrators,
executors and permitted assigns.
(b) No
party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of each other party hereto, except
that
Purchaser may assign any or all of its rights or delegate any or all of its
obligations hereunder, and may transfer, sell or otherwise dispose of all or
any
part of its interest in Merger Sub, to any of its affiliates without such prior
written consent.
5.08. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
The
Commonwealth of Massachusetts, without regard to the conflicts of law rules
thereof.
5.09. Waiver
of
Jury Trial.
Each
of
the parties hereto hereby irrevocably waives any and all right to trial by
jury
in any legal proceeding arising out of or related to this agreement or the
transactions contemplated hereby.
5.10. Counterparts;
Effectiveness.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
5.11. Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties with respect to
the
subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, among the parties with respect to its
subject matter.
5.12. Severability.
If
any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction or other Governmental Authority to be invalid, void
or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
5.13. Specific
Performance.
The
parties hereto agree that Purchaser would be irreparably damaged if for any
reason any Securityholder fails to perform any of his or her obligations under
this Agreement, and that Purchaser would not have an adequate remedy at law
for
money damages in such event. Accordingly, Purchaser shall be entitled to
specific performance and injunctive and other equitable relief to prevent
breaches or threatened breaches of this Agreement or to enforce specifically
the
performance of the terms and provisions hereof, without the need to post bond
or
other security, in addition to any other remedy to which they are entitled
at
law or in equity.
5.14. Securityholder
Capacity.
Notwithstanding
anything herein to the contrary, nothing set forth herein shall in any way
restrict any officer or director of the Company in the exercise of his or her
fiduciary duties as an officer or director of the Company (it being understood
that this Agreement shall apply to each Securityholder solely in each
Securityholder’s capacity as a holder of the Subject Shares).
5.15. Securityholder
Obligations Several and
Not Joint.
The
obligations of each Securityholder hereunder shall be several and not joint
and
no Securityholder shall be liable for any breach of the terms of this Agreement
by any other Securityholder. The failure of any Securityholder to execute and
deliver this Agreement shall in no way affect the obligations of any other
Securityholder hereunder.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly
executed as of the day and year first above written.
By:
/s/ Xxxxxx X.
Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title
Vice President and Treasurer
SECURITYHOLDERS:
/s/
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
/s/
Xxxxxxxxxxx
Xxxxxxxxx
Xxxxxxxxxxx
Xxxxxxxxx
/s/
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
ANNEX
I
|
Name
|
Address
|
Shares
Owed
|
|
|
|
|
|
Xxxxx
Xxxxxxx
|
000
Xxxxxxxxx Xxxx
Xxxxxxx,
XX 00000
|
35,000
|
|
Xxxxxxxxxxx
Xxxxxxxxx
|
0
Xxxx Xxxxxx
Xxxxxxxx,
XX 00000
|
30,301
|
|
Xxxxxx
Xxxxxxx
|
00
Xxxxx Xxxx
Xxxxxx,
XX 00000
|
20,500
|
